Body corporates can't penalise the tenant

Private Property South Africa

Lea Jacobs •
Jun 19, 2015

A great deal has been written about landlord's taking matters into their own hands in an attempt to get tenants to toe the line and pay their rentals, or about evicting them without the correct legal process being followed. It now seems that body corporates are also getting in on the action and are penalising third-party tenants when owners do not keep up with levy payments.

The fact that an owner of a unit doesn't pay levies has absolutely nothing to do with a tenant. A tenant who pays his rent every month is perfectly entitled to use any amenities available to all those who reside in a complex, until such time as a court says otherwise. Currently, there are a number of stories doing the rounds where tenants have been banned from using the swimming pool and club facilities and according to a report in the Daily News, barred from receiving visitors or even using the communal washing line.

To say that this is ludicrous is a gross understatement and it is unclear how penalising a tenant by withholding certain 'privileges' will help extort levies from a defaulting owner in the complex. What will invariably happen is that the tenant will elect to move out, perhaps leaving the owner less able to play catch up with any outstanding levies.

The root cause for such behaviour is unacceptable and distasteful ignorance of the law. Body corporates are not judicial bodies and are not capable of any form of sanction against anyone without approaching a court of law. Unfortunately, there are trustees and body corporate chairmen who assume a demi-God status, contrary to law or reason. Fortunately, the courts will disregard their assumed rank and title by making an appropriate order that takes the rights and obligations of all three parties into account. The wheels of justice grind slowly, but they grind surely and any meting out of justice by a over zealous body corporate will eventually be remedied.

A situation where an owner neglects or refuses to pay levies affects both the body corporate and, more particularly, a tenant renting the property. Nevertheless, when weighing up the rights and wrongs of the matter this does not justify a body corporate taking extra-judicial action against the tenant. It's real and only target is the owner and browbeating the tenant is pure and simple abuse in every sense of the word.

There are, of course, true demi-gods in the form of the rental housing tribunal who will not stand for a tenant being abused by a vindictive body corporate. It's suggested that anyone who is experiencing issues with the people who run the complex in which they live are well advised to contact this authority in order to get more clarity on the situation.

There is no question: levies have to be paid by the owner. The fact that they have not been paid is not a blight on the tenant - after all, he has no control over how his rental payments are utilised. It's highly unlikely that an unhappy tenant is going to convince his landlord to pay outstanding fees. Again, while the court may decide to allow the body corporate to garnish the rental payment from the tenant, this is not an option that the tenant can exercise without the assistance of the courts.